June 23, 2012

Is it possible that no clerk mentioned what s/he is working on to a spouse? That no spouse with the information mentioned it to a parent or friend, even accidentally? That no parent or friend let it leak to a sniffing journalist or day trader in the community? With an aggressive press corps dying for a scoop, well-connected within the community of people that work in and around the Court, doesn't it seem surprising that a secret could be so well kept?

Perhaps it seems so amazing in contrast to the way other things have leaked — notably the many national security leaks from the Obama White House. Another way of looking at this picture is with the template that everyone is probably doing what they really want to do. Nothing is actually an impressive feat of maintaining secrecy. People can keep secrets. We're surprised when they do only because of the rarity of wanting to keep secrets.

29 comments:

It was only about ten years ago that we learned a British naval gunnery secret from the Elizabethan days. Historians had always assumed that British gunners were just better trained but it turns out that they developed the science of gunnery tables to make them more accurate than their enemies.

Secrets most definitely can be kept. We still don't know what Greek fire consists of, though that secret involved killing those that were in the know.

James said...There is always the possibility the the justices are still working on their opinions and haven't as yet finalized them.

Don't the Justices vote in conference even before the opinions are written?

6/23/12 9:09 AM

Thats above my pay grade. Perhaps our hostess can advise us. However considering the impact of the courts ruling it would not surprise me if they have had more than one conference over this, especially in light of the complexity of the law and the number of issues and have probably read each other's briefs as well more than several times and conferred various times over the their respective briefs along with all of the record. Whatever the outcome might be, even if its 5 to 4 this is one case they each all want to come out looking like sober, reasoned and principled judges. Speaking of the various issues while not included as far as I know in the current record they are deciding on, they can't but help being aware of the separate but related suit brought on by the Catholic Church regarding mandate imposed on Catholic institutions and this may well be part of what they are deciding on in this ruling.

Here's an article about the Elizabethan naval artillery. I recall reading that they learned that they kept gunnery tables for improved accuracy, but this article doesn't mention that part. It gives the gist of what I was pointing out, though.

Supreme Court clerks are that discreet. The year my son clerked for a Supreme Court justice he never ever talked about what cases were before the Court. I would scour decisions his Justice authored to see if I could find evidence of my son's writing style. To this day my son will not discuss his Supreme Court experience or which cases he was involved with. But then lawyers are supposed to be discreet. And the Supreme Court clerks are carefully selected from an elite pool of vetted candidates.

An enterprising Reuters reporter tracked down family members of current clerks in search of a leak. No one talked because no one outside the Supreme Court chambers knows anything.

There is always the possibility the the justices are still working on their opinions and haven't as yet finalized them.Don't the Justices vote in conference even before the opinions are written?

They do vote in conference -- and there is only one conference on a given case -- but minds and votes can change as the opinions are circulated.

The vote is not final until the decision is announced from the bench. So, conceivably, someone could flip over the weekend.

As for leaking, a clerk discovered leaking would find that to be an excellent way to utterly destroy a career, if not getting disbarred. A justice caught leaking would likely earn the ire of the others and, given that this is a lifetime position, they like to keep things friendly over there (e.g. Scalia and Ginsberg are said to be the best of friends).

I'm still keeping secret some classified information I heard in army briefings over 40 years ago. Likely, the info is no longer even classified, but since I don't know, I'm not talking. It can be done.

Could it be that SCOTUS thinks it is important to protect its integrity? They have lifetime tenure and perhaps, just perhaps, they do not gain any partisan benefit from leaking details of cases. And it isnt like their opinions are known once the case is released. They are there for all to see.

Those who say that a big reason for the lack of leaks is because of the damage such leaks would cause to the career of the leaker (who would be exposed sooner or later, it's not a big group to investigate) know what they are talking about. As do those who say that the Court cares about its institutional integrity. Those who say it's because of some pro-Obama media conspiracy to keep the decision quiet, don't know what they are talking about.

The decision is not delayed. The oral arguments were held in March taking an unprecedented three days needed to cover this complex case. One would expect drafting the decision(s) would take weeks. And if the mandate is found to be unconstitutional, the Supremes will have to figure out what to do with the remaining parts of the bill--IMHO.

"Ships used gunfire merely to get close enough to the enemy for the crew to board and fight in hand-to-hand combat."

That was the tactic of the Spanish Armada. They had defeated the Turks at Lepanto by hand to hand fighting from the very tall castles of their ships. Gunnery was secondary. It made their ships unseaworthy. At Lepanto, they were fighting galleys and it didn't matter.

What Drake and Frobisher did was to build ships that were more weatherly, could point higher, and to improve gunnery. They did not let the Spanish close to the short range necessary for their tactics to work. The English ships kept the weather gauge and stood off and battered the Spanish ships to pieces. They also got between the Armada and the harbors they passed so the Armada kept going farther and farther north until they were above Scotland. They then turned west and circumnavigated the British Isles. Not many made it all the way.

Read "Confident Hope of a Miracle," an exhaustive book on the Armada. It's almost more info than anybody would want. It also is not complimentary to Elizabeth. Apparently she was a miser.

United States Courts of Appeals justices feed their best clerks to Supreme Court Justices. There are currently 179 justices on the 13 Courts of Appeals. The justices who send the most clerks to the Supreme Court after serving a year clerking for them are known as feeder judges. No constitutional law professor feeds clerks to the Supremes though a law school professor would definitely be instrumental in recommending law students for entry level clerkships.

They do vote in conference -- and there is only one conference on a given case -- but minds and votes can change as the opinions are circulated.

Anthony Kennedy voted in conference to overrule Roe v. Wade. It was 5-4 to overturn Roe and send abortion back to the states.

During the writing of the opinion, Captain Squish changed his mind, and said there was a Constitutonal right to abortion after all.

It's unseemly, to put it mildly, to say there is no right to abortion in the Constitution, and then say, oh, wait a minute, I see it now.

It's not like Kennedy's jurisprudence changed. Kennedy has no jurisprudence. He's a Squish Monster, squishing from case to case like an alien in a B movie flick, feeling his way blindly and stupidly.

Among other things, the Kennedy switch-in-time taught the left that it's perfectly acceptable to demolish and destroy nominees for the Supreme Court (like Robert Bork). Bork was villified. Kennedy was the replacement nominee, and took the job that Bork should have had.

What this means is that the vicious and partisan attack on Clarence Thomas is due to the squishiness of Anthony Kennedy. Attack the strong, goes the liberal theory, and Republicans will be forced to nominate some weaker mind.

I don't actually agree with Bork (he's no defender of liberty), but nobody would attempt to pressure him to change his mind. It's unthinkable. No, sorry, it's weakness that invites pressure. Captain Squish gets attention because he is Captain Squish.